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Friday, 8 July 2016

Amidst all themadness hectic legislative
activity surrounding orphan works and out-of-print books that took place in
Europe in the first half of 2010s (also as a reflection and echo of the
unfoldingGoogle
Books sagain the US), in
2012 France adopted aloi(Law
No 2012-287 of 1 March 2012) to allow and regulate the digital
exploitation of out-of-print 20th century books.

Among other things, this French law gives
approved collecting societies the right to authorise the reproduction and the
representation in digital form of out-of-print books, while allowing the
authors of those books, or their successors in title, to oppose or put an end
to that practice subject to certain conditions.

More specifically, the relevant implementing decree has established a
legal framework intended to encourage the digital exploitation of works
reproduced in books published in France before 1 January 2001 which are no
longer commercially distributed by a publisher and are not published in print
or digital format. In that case the right to authorise the reproduction or
performance of those books in digital format is exercised, six months after
their registration in a publicly accessible database for which the National
Library of France is responsible, by collecting societies approved to do so by
the Minister responsible for culture.

But is an arrangement of this kind compatible with EU law, notably
theInfoSoc
Directive? Among other things, Article 2(a) and 3(1) of that directive, in
fact, provideauthors- not collecting societies - with
the right to authorise the reproduction and communication to the public of
their works.

This is the question at the core of the reference for a
preliminary ruling lodged by the French Conseil d’État and currently
pending before the Court of Justice of the European Union (CJEU). This is Marc
SoulierC-301/15.

Yesterday Advocate General Wathelet issued hisOpinionin this case, advising the Court[not really surprisingly, also
considering recent CJEU decisions likeReprobel,
notedhere]to rule in the sense
of the incompatibility of French law with EU law.

Background

The applicants in the national proceedings have lodged
an application with the Conseil d’État. They seek the annulment for misuse of powers of
Law No 2012-287 implementing decree, on grounds that the Law on out-of-print
books is not compatible with the limitations and exceptions to the right to
authorise the reproduction of a copyright work which are exhaustively set out
in the InfoSoc Directive.

Further to a reference to the Conseil constitutionnel in 2013 regarding
the compatibility of Law No 2012-287 with theFrench
Constitution[in 2014 the
Conseil constitutionnel responded in the sense of its compatibility], the Conseil d’État decided to stay the proceedings and
refer the following question to the CJEU:

Do [Articles 2 and 5] of [the InfoSoc
Directive] … preclude legislation, such as that [established in Articles
L. 134-1 to L. 134-9 of the Intellectual Property Code], that gives
approved collecting societies the right to authorise the reproduction and the
representation in digital form of “out-of-print books”, while allowing the
authors of those books, or their successors in title, to oppose or put an end
to that practice, on the conditions that it lays down?’

The AG Opinion

First: what needs to be considered?

The AG noted at the
outset that, although the question referred by the Conseil d’État relates to Article 2 of the InfoSoc Directive,
the digitisation and making available of a book also calls into consideration
Article 3(1)[right of communication to the public]. This is because[para 26] the digital
exploitation of copyright books constitutes ‘reproduction’ and ‘communication
to the public’ of a work, which require individual and separate authorisation
by the author, unless those acts are covered by an exception or a
limitation provided for in Article 5 of that directive.

According to the AG, to answer the question posed
by the French court, consideration of Article 5 of the InfoSoc Directive is
unnecessary. This is because[para 28]legislation such as
that at issue in the case in the main proceedings is not included in the
detailed and exhaustive list of exceptions and limitations in
Article 5.

The scope of exclusive rights

Having clarified what provisions need to be
considered and recalled the rationale[high protection of authors]and
interpretation of InfoSoc provisions['autonomous' and 'uniform' where no express reference is
made to Member States' laws], the AG
turned to the consideration of the scope of relevant exclusive rights.

He held[paras 38-39]that:

"Article 2(a) and Article 3(1) of
Directive 2001/29 require the prior express consent of
the author for any reproduction or communication to the public of
his work, including in digital format. That consent constitutes an
essential prerogative of authors.

In the absence of any derogating EU
legislation, the author’s express and prior consent for the reproduction
or communication to the public of his work cannot be eliminated, assumed or
limited by substituting it with tacit consent or a presumed transfer which
the author must oppose within a fixed time limit and in accordance with
conditions laid down by national law. It follows that national legislation like
the decree at issue, which replaces the author’s express and prior consent with
tacit consent or a presumption of consent, deprives the author of an essential
element of his intellectual property rights."

The AG added that none of the
following characteristics of the French law alter such finding, ie: the possibility of opposition and
withdrawal; the right to remuneration, and the absence of commercial
distribution of the work to the public.

The scope of EU preemption

The AG also rejected the argument that the
legislation at issue would not affect the protection of copyright because
it simply constitutes an arrangement for managing certain rights which
Article 2(a) and Article 3(1) of Directive 2001/29 do not preclude.
According to the AG[paras 55-57],

"such a view of copyright runs counter to
Article (2)(a) and Article 3(1) of [the InfoSoc] Directive. In
providing for the author’s exclusive right to authorise or prohibit the
reproduction and communication to the public of his works, those provisions
also concern the way in which those rights are exercised by the author.

While it is true that [the InfoSoc] Directive
2001/29 neither harmonises nor prejudices the arrangements concerning
the management of copyright which exist in Member States, the EU
legislature, in providing that authors enjoy, in principle, exclusive rights to
authorise or prohibit the reproduction of their work and its communication to
the public, exercised its competence in the field of intellectual property.

In those circumstances, the Member States can no
longer adopt management arrangements which compromise EU legislation, even
if this is done with the intention of furthering a public interest
objective. Before management of the rights of reproduction and
communication to the public can be taken into consideration, the holder of
those exclusive rights must have authorised a management organisation to manage
his rights."

Comment

Gentle reminder

This is yet another thoughtful Opinion by AG Wathelet, which in my
view is entirely correct. Let's see if the CJEU agrees.

Two further points worth raising are the following.

First, it seems to me that lately AGs have taken protection of
'authors'[rather
than - more generically - rightholders]particularly
at heart. Besides yesterday's Opinion of AG Wathelet, another recent example
that comes to mind is theOpinion of
AG Szpunar in Vereniging Openbare
Bibliotheken v Stichting Leenrecht,
C-174/15[the 'e-lending case', currently in progress and notedhere], in which he clearly stated [para 34] that "the
principal objective of copyright is to safeguard the interests of
authors".

Secondly, should the CJEU follow the Opinion of
AG Wathelet[which seems natural, considering recent jurisprudence]the French
law on out-of-print books may not be the only piece of legislation incompatible
with EU law.

Staying in France, only yesterdayLoi
No 2016-925onla
liberté de la création, l'architecture et patrimoine(freedom of creation, architecture and cultural heritage)
was published in the Journal
officiel de la République française[this
blogreportedon this legislative initiative when it was at the draft stage].

Among other things, Article 30 of Loi
No 2016-925 introduces new provisions into the Code de la propriété
intellectuelle to regulate the
publication of a plastic, graphic or photographic work by an online
communication service. In particular, new Article 136-2(1) states the
following:

This meansthat the publication of a plastic artwork, graphic or photographic work
by an online communication service is subject to the consent,
not of authors, but rather ... one or more collecting societies appointed to
this end by the French Ministry of Culture.

I look forward to reading further
commentaries on this new piece of French legislation but, in light of AG Wathelet's analysis and previous CJEU case law, it does not seem that Loi No 2016-925 is
entirely compatible with EU law.

7 comments:

The focus of this Opinion seems to ignore two important recitals in the Orphan Works Directive 2012/28/EC of 25 Oct 2012:"(4) This Directive is without prejudice to specific solutions being developed in the Member States to address larger mass digitisation issues, such as in the case of so-called ‧out-of-commerce‧ works. Such solutions take into account the specificities of different types of content and different users and build upon the consensus of the relevant stakeholders. ....(24) This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences, legal presumptions of representation or transfer, collective management or similar arrangements or a combination of them, including for mass digitisation."If affirmed, AG Wathelet's decision also has implications for the UK's own Orphan Works provisions which purport to be "licences", the compatibility (with EUI law) of which Eleonora had also raised a few years ago: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323393

It seems that EU copyright law is contrary to common sense. And the judges in Luxembourg are too short-sighted: copyright should be interpreted in light of fundamental principles, not just with reference to rec. 9 of InfoSoc (the famous "high level of protection").

Fahrenheit 451.These are books. Interesting how many people consider that copyright's function is to empower collecting societies by allowing them by degrees and under cover of law to appropriate the works of authors. Then dress it up as if it is in the public interest and the optimum solution.The French law is a particularly egregious example.

If the CJEU deserves credit for anything, it is that where asked to specifically address the relationship between the author and the hanger on (collecting society and the publisher for example)-they have rationalised the relationship. So they are author centric.Infinitely better than being publisher or CRM centric -it will be shortlived anyway as the legislator will reverse it. MS do not really like authors -no one does. They are seen as pains in the neck (like inventors in the area of patents).They create -ok but once they do the market has to take what they create and use it in an optimum way. And these are authors late 20 century books to the present day mind you. An and an era where you can find the authors. MS like the other commentators on here prefer collecting societies and publishers.Soon authors will be reduced to the status of performers.

Anyway, it is only an AG's opinion but if the Court can see the far reaching consequences of the French law, they should agree.

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